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DAPL documents subject of 2nd lawsuit; state regulators hold thousands of records

DAPL documents subject of 2nd lawsuit; state regulators hold thousands of records

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A nonprofit online news outlet is suing North Dakota regulators over state-held documents related to the company that built the Dakota Access Pipeline and the company that handled security during construction.

The lawsuit filed this week by attorneys for First Look Media Works Inc., publisher of The Intercept, accuses the North Dakota Private Investigative and Security Board of violating state law and both the North Dakota and U.S. constitutions in refusing to release documents sought by reporter Alleen Brown.

The records in question are now entangled in two lawsuits. Pipeline developer Energy Transfer and its subsidiary Dakota Access LLC sued the board in October, seeking the return of what they consider to be “confidential, proprietary, and privileged documents.”

The Intercept wants the documents for investigative work by a reporter who the lawsuit says focuses on "environmental justice, the treatment of Indigenous peoples and workers, and government efforts to suppress First Amendment-protected activities."

The North Carolina-based security company TigerSwan gave about 16,000 documents to the state during a two-year-long battle over whether the company operated illegally in North Dakota while the pipeline was under construction in the state in 2016 and 2017. That dispute culminated with a settlement in September under which the company agreed to pay $175,000 to the board but did not admit to any wrongdoing.

Intercept attorney Tim Purdon in his complaint accuses the board of providing hundreds of documents to Bismarck attorney Chad Nodland, who made an open records request, but refusing a similar request by Brown. Purdon said the board cited the pending Energy Transfer lawsuit and a judge's order earlier this month keeping the records confidential until that dispute is resolved.

Purdon accuses the board of showing a "lack of commitment to serving the public's interest in government transparency and to carrying out its ministerial duty of producing records that are presumed available to the public under the North Dakota constitution, its statutes, and the First Amendment to the U.S. Constitution" by not fighting the judge's order.

Board Executive Director John Shorey declined comment to the Tribune, citing ongoing litigation. The board is represented by the state attorney general's office, which also does not comment on litigation.

The pipeline was heavily protested by American Indian tribes and environmentalists during its construction in North Dakota. The Intercept, which bills itself as a news organization seeking to expose corruption and injustice, has written articles critical of TigerSwan, accusing it of infiltrating protest camps and using military-style counterterrorism measures.

TigerSwan has long maintained that it provided only consulting services that don't require a North Dakota license and that any actual investigative work occurred in North Carolina.

The Dakota Access Pipeline has been moving North Dakota oil to a shipping point in Illinois for more than three years. American Indian tribes including the Standing Rock Sioux who oppose the pipeline because they fear an oil spill could pollute their water supply continue to fight the project in federal court. That lawsuit -- parts of which have spilled over into a federal appeals court -- began four years ago and is likely to linger into next year.

Reach Blake Nicholson at 701-250-8266 or blake.nicholson@bismarcktribune.com.

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